Appropriation art and fair use, the latest
twist – the estate of Andy Warhol sues photographer Lynn Goldsmith over
‘Prince’ series
The legal
status of most (if not all) appropriation art cases within the U.S. hinge on
the court’s case-by-case analysis of the fair use doctrine. Many recent cases
have involved Richard Prince and his artworks (more information on this can be
found here and here). This writer has always found appropriation
art fascinating. From Handel’s famous borrowings to the ground-breaking
‘It Takes a Nation of Millions to Hold Us Back’, taking something old
and re-imagining it enriches our culture. Within the jurisdiction of the US,
the contentious issue has always been (and will always be) whether the new use
of the work falls under fair use, or whether it falls outwith the doctrine and
is therefore an infringement of copyright.
 |
| Andy Warhol |
The
estate of Andy Warhol is at the centre of
the most recent twist relating to the interaction between appropriation art and
copyright law. In an interesting turn of events, the estate of Warhol has
pre-emptively filed suit against photographer Lynn Goldsmith. Goldsmith had
complained to the Warhol Foundation that Warhol’s 1984 ‘Prince’ series
infringes her copyright in a publicity photograph taken in 1981. Goldsmith reportedly stated in an email to Daily
News that, “I believe that Warhol infringed my rights and I will oppose their
action and counter claim for copyright infringement.”
Amongst
the four causes of action in the complaint submitted by the estate, a declaratory judgement of fair use
is being sought. The complaint reads: “Although Warhol
often used photographs taken by others as inspiration for his portraits,
Warhol's works were entirely new creations… As would be plain to any reasonable
observer, each portrait in Warhol’s Prince Series fundamentally transformed the
visual aesthetic and meaning of the Prince Publicity Photograph.”
The
complaint is also seeking declarations that Warhol’s Prince Series does not
infringe Goldsmith’s copyright and that any potential copyright claims are
barred by the statute of limitations (set at three years under § 507
of the US Copyright Act) and the doctrine of laches. Therefore, if the court
action does eventually come to fruition, a fair use analysis may not be
necessary if the court finds in relation to any of the other causes of action.
The Copykat will no doubt issues updates on this case as they come.
Ed Sheeran’s ‘Photograph’ suit is settled
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| Ed Sheeran |
In her
very first post for the 1709 blog, this writer covered Ed Sheeran’s ‘Photograph’ lawsuit. The suit was brought
by Martin Harrington and Thomas Leonard in relation to their 2010 single ‘Amazing’. The two songwriters
alleged in the initial lawsuit that Ed Sheeran’s ‘Photograph’ was ‘verbatim, note-for-note copyright’.
This case
is now settled, with full details of the deal having been kept confidential.
However,
US Safe Harbour – moderators with actual or
‘red flag’ knowledge of infringement might disqualify platforms from safe harbour
protection
Safe
harbour is the qualified limitation of liability for hosting providers which
host third party content, where users have uploaded infringing content (§ 512
of the US Copyright Act). Safe harbour was introduced through the Digital Millennium
Copyright Act (“DMCA”) nearly two decades ago.
The 9th
Circuit recently issued a ruling in Mavrix Photographs v LiveJournal, which
states that; where volunteer moderators can be legally classified as agents of
a company, and that said moderators had actual or ‘red flag’ knowledge of
infringement in posts they reviewed and authorised, a company might lose its
safe harbour protection.
The case
surrounds 20 photos belonging to celebrity news photo agency Mavrix. These photos had been published (without Mavrix’s permission) on the
gossip site LiveJournal, specifically, its blog ‘Oh No They Didn’t’ (“ONTD”). Of
significant importance to the case, the ONTD blog
content is uploaded by users. However, before this content is published on the
site, it is reviewed by a moderator to ensure adherence to site rules.
Rather
than issue a takedown request, Mavrix chose instead to file suit against
LiveJournal for copyright infringement. LiveJournal subsequently invoked the
safe harbour defence. LiveJournal’s downfall in this case was the fact that it
employs a team of volunteer moderators who review all posts according to the
website’s rules before any posts are published on the site. According to the
court, if the moderators can be classified as agents of LiveJournal, and the
agents had ‘red flag’ or actual knowledge of copyright infringement, the safe harbour
exception may not apply.
Judge
Paez states that “Although LiveJournal calls the moderators 'volunteers,' the
moderators performed a vital function in LiveJournal’s business model. There is
evidence in the record that LiveJournal gave moderators express directions
about their screening functions, including criteria for accepting or rejecting
posts. Unlike other sites where users may independently post content,
LiveJournal relies on moderators as an integral part of its screening and
posting business model.”
The
Electronic Frontier Foundation has criticized the decision, stating that “The DMCA does not forbid service
providers from using moderators … many online services have employees (or
volunteers) who review content posted on their services, to determine (for
example) whether the content violates community guidelines or terms of service.
Others lack the technical or human resources to do so. Access to DMCA
protections does not, and should not, turn on this choice."
This case
is reminiscent of the Grooveshark case, where safe harbour protections
were denied where employees uploaded infringing content in order to attract
users to the service, as also the MP3tunes case, where the company’s inadequate repeat infringer policy
cost it its safe harbour protection.
Pornhub ordered to hand over details of
copyright infringers
As a site
that relies on content uploaded by third party users, Pornhub falls under the
DMCA safe harbour protection. While most copyright owners submit DMCA takedown
requests as a means of controlling their copyright, Foshan Limited – known for
a particular type of porn brand – has obtained a DMCA subpoena compelling
Pornhub to hand over all information available on infringing individuals by 1
May. This includes names, email addresses, IP addresses, user and posting
histories, physical addresses, telephone numbers, and any other identifying or
account information. The subpoena was issued by a federal court in California.
When
Foshan Limited receives the information covered under the subpoena (that is, if
Pornhub doesn’t appeal), it may potentially launch legal action against the
infringers.
TorrentFreak
asserts that, “As far as we’re aware, this is the
first time that a rightsholder has used a DMCA subpoena to obtain information
about Pornhub uploaders. And since it’s a relatively cheap and easy way to
expose infringers, this might not be the last.”
In
another recent case, Malibu Media,
LLC v Doe,
a similar subpoena has been issued to the Internet Service Provider of an
alleged infringer who has illegally uploaded pornography. This time,
proceedings took place in the district court of Connecticut.
In this
case, the subpoena issued had several caveats to protect the identity of the
alleged infringer. As reported by William Dalsen, these are “First, the
court limited the subpoena solely to the name and physical address of any
subscriber associated with the IP address at issue, and not any additional
contact information. Second, the court required the ISP to delay its response
to the subpoena, pending notice to the subscriber of the lawsuit and of the
subpoena, notice to the subscriber that the ISP would comply with the subpoena,
and after allowing the ISP itself an opportunity to quash the subpoena. Third,
the purported defendant had 60 days from notice of the subpoena to move to
quash the subpoena. Fourth, the court would permit the purported defendant to
litigate the subpoena anonymously. Finally, plaintiff could not publicly file
any identifying information about the supposed defendant without further order
of the court.”
These
unusual caveats reflect the court’s concern that a defendant, having been
accused of distributing pornographic content, may feel coerced into settling
any lawsuit merely to avoid being publicly named in that
suit.
The photo of
Andy Warhol is courtesy of moscot, moscot.com under the CC BY-SA 4.0 licence.
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